PUBLISHED

PUBLISHED UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-1940

PETER VLAMING, Plaintiff ? Appellee,

v. WEST POINT SCHOOL BOARD; LAURA ABEL, in her official capacity as Division Superintendent; JONATHAN HOCHMAN, in his official capacity as Principal of West Point High School; SUZANNE AUNSPACH, or her Successor in Office, in her official capacity as Assistant Principal of West Point High School,

Defendants ? Appellants, and JOHN DOE,

Amicus Supporting Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:19-cv-00773-JAG)

Argued: May 7, 2021

Decided: August 20, 2021

Before FLOYD, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson joined and Judge Floyd concurred in the judgment. Judge Floyd wrote a separate concurring opinion.

ARGUED: Edward Henderson Williams, II, WILMERHALE LLP, Washington, D.C., for Appellants. Tyson C. Langhofer, ALLIANCE DEFENDING FREEDOM, Ashburn, Virginia, for Appellee. ON BRIEF: Stacy Haney, HANEY PHINYOWATTANACHIP, Richmond, Virginia; Paul R.Q. Wolfson, Bruce M. Berman, Tania Faransso, Washington, D.C., Alan E. Schoenfeld, WILMERHALE LLP, New York, New York, for Appellants. J. Caleb Dalton, Washington, D.C., Ryan Bangert, Scottsdale, Arizona, David A. Cortman, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia; Shawn A. Voyles, MCKENRY DANCIGERS DAWSON, P.C., Virginia Beach, Virginia, for Appellee. Luke Platzer, Washington, D.C., Cayman Mitchelle, New York, New York, Kristen Green, JENNER & BLOCK LLP, Los Angeles, California; Asaf Orr, Shannon Minter, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Amicus Curiae.

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QUATTLEBAUM, Circuit Judge: This appeal provides us the rare opportunity to review a remand order. A local

school board fired a teacher for refusing to comply with its policies prohibiting discrimination and harassment. The teacher brought state causes of action in state court to challenge his termination. The school board removed the case to federal court, arguing the court had jurisdiction pursuant to the federal question removal statute, 28 U.S.C. ? 1441(c), and the civil rights removal statute, 28 U.S.C. ? 1443(2), because the claims turned on the school board's enforcement of Title IX, 20 U.S.C. ? 1681. Unconvinced, the district court remanded the case. Because neither statute provides a basis for removal here, we affirm.

I. A. John Doe was a student at West Point High School, a public school in Virginia. At the start of the school year, Doe and his parent met with the school's assistant principal, Suzanne Aunspach, to explain that he had recently undergone a gender transition and had adopted a preferred name consistent with that transition. They requested that school staff use male pronouns and refer to Doe by his new name. Peter Vlaming was Doe's French teacher. He had taught Doe for two years before Doe underwent his transition. Shortly after their meeting with Aunspach, Doe, his parents and the school guidance counselor met with Vlaming to discuss Doe's new name and preferred pronouns. After the meeting, Aunspach told Vlaming he was expected to use Doe's preferred name and male pronouns. 3

Over the next two months, Vlaming referred to Doe by his new name, but he avoided the use of pronouns altogether when speaking to Doe directly and on at least one occasion referred to him using female pronouns in Doe's absence. Doe and his parents expressed frustration with Vlaming over this practice. Aunspach met with Vlaming again to reiterate Doe's preferences. She told Vlaming that his refusal to use male pronouns potentially violated both Title IX, which prohibits schools receiving federal funds from discriminating on the basis of sex, and the West Point School Board's policies. She provided Vlaming with written guidance regarding transgender students' rights. Vlaming told her that using male pronouns to refer to someone who was born a female violated his religious beliefs because it was untruthful. Aunspach reiterated that Vlaming should use male pronouns to refer to Doe and that failure to do so could result in his termination.

Shortly thereafter, the principal, Jonathan Hochman, met with Vlaming. He directed Vlaming to use male pronouns to refer to the student. The next day, Hochman warned Vlaming that a refusal to comply with the School Board's policies would result in a letter of formal reprimand. That same day, Vlaming, apparently accidentally, used a female pronoun to refer to Doe during a classroom activity. Afterwards, Vlaming reported the incident to Principal Hochman. Doe subsequently withdrew from Vlaming's class, citing this incident and others. On Hochman's recommendation, the superintendent placed Vlaming on administrative leave pending an investigation.

During this leave, Principal Hochman gave Vlaming a final warning, which explained that his refusal to use Doe's preferred pronouns violated two school board

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policies that prohibited discrimination and harassment based on gender identity.1 The

superintendent also ordered Vlaming to refer to Doe using only male pronouns and warned

him that if he treated Doe differently than other male students, he would be terminated.

Vlaming refused to comply with these directives. The superintendent therefore

recommended his dismissal to the School Board. After a hearing, the Board dismissed

Vlaming. In a letter explaining its rationale, the Board stated that Vlaming had failed to

comply with his superiors' directives and had violated the Board's policies prohibiting

discrimination and harassment because his actions singled out Doe in a way that was

noticed by Doe and his peers.

B.

Vlaming sued the School Board, and several school officials in their official

capacity (collectively the "Board"), alleging that their decision to terminate his

1 The nondiscrimination policy states: The West Point School Board is committed to nondiscrimination with regard to race, color, religion, national origin, ancestry, political affiliation, sex, sexual orientation, gender, gender identity, age, marital status, genetic information or disability as defined by law. This commitment will prevail in all division policies and practices concerning staff, students, educational programs and services, and with individuals/entities whom the Board does business.

J.A. 85.

The nonharassment policy states: It is a violation of this policy for any student or school personnel to harass a student or school personnel based on . . . sex, sexual orientation, gender, gender identity . . . as defined by law, or based on a belief that such characteristic exists at school or any school sponsored activity.

J.A. 87. 5

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